The new Electronic Communications Code

Statutory rights enjoyed by electronic communications operators are set to change.

A new regime to be introduced under the Digital Economy Act 2017 will apply to electronic communications apparatus installed and retained on land. With the exception of certain transitional provisions, the new Code will replace the existing code and any provisions to exclude the new Code will not be enforceable.   

The new Code, which is expected to come into force next month, is long overdue, with current legislation very much out of date and not suitable for today's technology. The shift this new legislation will bring about for landowners and operators alike will be significant.

Some material provisions to be introduced under the new Code:

• Alienation – an operator will benefit from what will be seen as a single, composite right in relation to its interest in land. As such, restrictions on upgrading and sharing apparatus as well as assignment (such as the need for landowner consent or additional rent/payments) will be void. A possible safety-catch for landowners is the test applicable to sharing rights; any additional apparatus cannot have "an adverse impact" and must not create an additional burden on the landowner. This is particularly subjective however and could lead parties towards dispute. 
• Statutory right to remain – when the old code was established the law-makers did not think about parallel statutory rights which operators may also benefit from under the Landlord and Tenant Act 1954. This has now been resolved with the new Code removing this overlap; an agreement under the new Code cannot also be a business tenancy under the '54 Act.
• Termination - if the new Code applies a more drawn-out termination process follows, with particular grounds for termination to be given by a landowner alongside an initial 18 months' notice. Further notice then needs to be given to enable removal of the apparatus which may involve applications to Court. Landowners will need to carefully consider future plans for their property before agreeing terms with an operator.  
• Rent – historically, operators paid rent negotiated on the open market.  Under the new Code, rent will no longer be agreed based on the value of the site to the operator and telecoms use will be disregarded.

A new Code of Practice accompanies the new Code and is available to landowners, occupiers and operators. Compliance with this is voluntary. It therefore remains to be seen how much this will ultimately be adhered to.